Writ Petition No. 24266 of 2021 · The High Court
Case Details
1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA WRIT PETITION No.24266 OF 2021 (GM - RES) BETWEEN: SHREEMAJJAGADGURU SHANKARACHARYA SHREE SHREE RAGHAVESHWARA BHARATI SWAMIJI (FORMERLY KNOWN AS SRI HARISH SHARMA) AGED ABOUT 46 YEARS, PEETADHIPATHI OF SHREE SAMSTHANA GOKARNA SHREE RAMACHANDRAPURA MTH, RAMACHANDRAPURA VILLAGE, HANIYA POST, HOSANAGARA TALUK, SHIVAMOGGA DISTRICT – 577 418. ... PETITIONER (BY SRI MANMOHAN P.N., ADVOCATE) AND: 1 . THE STATE OF KARNATAKA BY GIRINAGARA POLICE STATION AND CID SPECIAL INVESTIGATING AGENCY, BENGALURU, THROUGH STATE PUBLIC PROSECUTOR HIGH COURT BUILDING, BENGALURU – 560 001. 2 2 . SMT.XXXX W/O SRI XXXX, XXXXXXX ... RESPONDENTS (BY SRI THEJESH P., HCGP FOR R-1; SRI ARAVIND M.NEGLUR, ADVOCATE FOR R-2) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF CR.P.C., PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.26533/2018 PENDING BEFORE THE I ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, BENGALURU INCLUDING THE COMPLAINT DATED 29.08.2015 FIR IN CRIME NO.257/2015 DATED 29.08.2015 AND THE CHARGE SHEET NO.06/2018 DATED 07.09.2018 REGISTERED AGAINST THE PETITIONER (ACCUSED NO.1) BY THE R1 POLICE AND ALL FURTHER PROCEEDINGS PURSUANT THERETO (PRODUCED AS ANNEXURE-D, A, B AND C). THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:- 3 CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA CAV ORDER The petitioner/Pontiff of Shree Samsthana Gokarna Shree Ramachandrapura Math (‘Math’ for short) is knocking at the doors of this Court calling in question proceedings in C.C.No.26533 of 2018 registered for offences punishable under Sections 376(2)(f), 363, 342, 323, 506 and 149 of the IPC. 2. Heard Sri P.N. Manmohan, learned counsel appearing for the petitioner, Sri P. Thejesh, learned High Court Government Pleader appearing for respondent no.1 and Sri Aravind M. Neglur, learned counsel appearing for respondent No.2. 3. Facts, in brief, germane are as follows:- The petitioner is said to be the Pontiff of the Math and is the 36th Pontiff in the unbroken lineage of Adi Sankara Parampara. It is the averment in the petition that Shri Samsthana Gokarna Shri Mahabaleshwara Devaru and Parivara Devaru has historically, traditionally and customarily always attached to Math. The administration and management of the Math has some problems in 4 it and it is averred that there exist continuous disputes between two factions in the Math. In the year 2010, a crime comes to be registered in Crime No.27 of 2010 against certain persons for the offence of morphing and making a fake compact disc with an intention to tarnish and destroy the reputation of the Math and the petitioner. The Police, after detailed investigation, filed a charge sheet against the perpetrators of crime for offences punishable under Sections 120B, 153(a), 295(a), 298, 500, 511 and 149 of the IPC and Section 67 of the Information Technology Act, 2000. Thereafter, certain other cases against office bearers of the Math also spring for the allegation of sexual harassment. In all these cases, the Police after investigation file a ‘B’ report and those proceedings are closed on account of acceptance of ‘B’ report. 4. When all the efforts failed, again the averment in the petition is, during the end of 2013 or early 2014 an Association by name Gokarna Hitharakshana Samithi and an NGO by name ASTRA filed public interest litigation in Writ Petition No.36998 of 2013 before this Court on several grounds which the petitioner claims to be frivolous. After filing of the aforesaid petition, it is alleged that 5 the petitioners therein have taken to threaten the Math by demanding ransom for withdrawal of PIL. The Pontiff or the Math did not yield. The extortionists then were caught red-handed by recording of extortion and a complaint comes to be registered on 21-03-2014 against those perpetrators. A crime then comes to be registered in Crime No.47 of 2014 and charge sheet is filed by the Police after investigation for extortion. This is the second proceeding instituted by the Math against repeated attempts to de- stabilize the Math. The public interest litigation that was filed in Writ Petition No.36998 of 2013 comes to be dismissed pursuant to a detailed affidavit filed by the Math with imposition of costs of ₹1/- lakh on the petitioners therein for abusing the process of the Court by registering a frivolous case. 5. Between 12-07-2014 and 18-09-2014 on the eve of Jayanama Chaturmasya and Sharannavaratri the petitioner had
Legal Reasoning
“14. Be that as it may, as held by this Court, summoning of accused in a criminal case is a serious matter. Hence, criminal law cannot be set into motion as a matter of course. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The Magistrate has to record his satisfaction with regard to the existence of a prima facie case on the basis of specific allegations made in the complaint supported by satisfactory evidence and other material on record. …. ….. ….. …. 19. In the order issuing summons, the learned Magistrate has not recorded his satisfaction about the prima facie case as against Respondents 2 to 7 and the role played by them in the capacity of Managing Director, Company Secretary or Directors which is sine qua non for initiating criminal action against them. 7 (2013) 4 SCC 505 44 Recently, in Thermax Ltd. v. K.M. Johny [(2011) 13 SCC 412 : (2012) 2 SCC (Cri) 650 : (2011) 11 Scale 128] while dealing with a similar case, this Court held as under : (SCC p. 429, paras 38 & 39) “38. Though Respondent 1 has roped all the appellants in a criminal case without their specific role or participation in the alleged offence with the sole purpose of settling his dispute with the appellant Company by initiating the criminal prosecution, it is pointed out that Appellants 2 to 8 are the ex-Chairperson, ex-Directors and senior managerial personnel of Appellant 1 Company, who do not have any personal role in the allegations and claims of Respondent 1. There is also no specific allegation with regard to their role. 39. Apart from the fact that the complaint lacks necessary ingredients of Sections 405, 406, 420 read with Section 34 IPC, it is to be noted that the concept of ‘vicarious liability’ is unknown to criminal law. As observed earlier, there is no specific allegation made against any person but the members of the Board and senior executives are joined as the persons looking after the appellant the management and business of Company.” (Emphasis supplied) In SUNIL BHARTI MITTAL v. CENTRAL BUREAU OF INVESTIGATION8 the Apex Court holds as follows: “48. Sine qua non for taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations, if proved, would constitute an offence. It is, therefore, imperative that on a complaint or on a police report, the Magistrate is bound to consider the question as to whether the same discloses commission of an offence and is required to form such an opinion in this respect. When he does so and decides to issue process, he shall be said to have taken cognizance. At the stage of taking cognizance, the only consideration before the court remains to consider judiciously 8 (2015) 4 SCC 609 45 whether the material on which the prosecution proposes to prosecute the accused brings out a prima facie case or not. …. …. …. 53. However, the words “sufficient ground for proceeding” appearing in Section 204 are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against the accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect.” (Emphasis supplied) In the latest judgment, the Apex Court, in the case of RAVINDRANATHA BAJPE v. MANGALORE SPECIAL ECONOMIC ZONE LIMITED9 holds as follows: In “8.1. the case of Maksud Saiyed v. State of Gujarat, (2008) 5 SCC 668, in paragraph 13, it is observed and held as under: “13. Where a jurisdiction is exercised on a complaint petition filed in terms of Section 156(3) or Section 200 of the Code of Criminal Procedure, the Magistrate is required to apply his mind. The Penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the Company when the accused is the company. The learned Magistrate failed to pose unto himself the correct question viz. as to whether the 9 (2022)15 SCC 430 46 complaint petition, even if given face value and taken to be correct in its entirety, would lead to the conclusion that the respondents herein were personally liable for any offence. The Bank is a body corporate. Vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. Statutes indisputably must contain provision fixing such vicarious liabilities. Even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability.” 8.2. As observed by this Court in the case of Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749 and even in catena of decisions, summoning of an accused in a criminal case is a serious matter. Criminal Law cannot be set into motion as a matter of course. In paragraph 28 in Pepsi Foods Limited (supra), it is observed and held as under: thereafter “28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be in sufficient for the complainant to succeed bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.” preliminary evidence of (Emphasis supplied) 47 It would also be useful to notice the latest judgment rendered by the Apex Court on 03.12.2021 in aid of the afore-mentioned reasons assigned. The Apex Court in the case of SUNIL TODI v. STATE OF GUJARAT10 holds as follows: a facie prima “39. This Court has held that the Magistrate is duty bound to apply his mind to the allegations in the complaint together with the statements which are recorded in the enquiry while determining whether there for is proceeding. In Mehmood Ul Rehman v. Khazrir Mohammad Tunda, this Court in Pepsi Foods Ltd. v. Special Judicial Magistrate, and observed that setting the criminal law in motion against a person is a serious matter. Hence, there must be an application of mind by the Magistrate to whether the allegations in the complaint together with the statements recorded or the enquiry conducted constitute a violation of law. The Court observed: the dictum sufficient followed ground “20. The extensive reference to the case law would clearly show that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the the complaint, when considered along with statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before is not a mechanical process or matter of course. As held by this Court in Pepsi Foods Ltd. v. Judicial Magistrate [Pepsi Foods Ltd. v. Judicial Magistrate, (1998) 5 SCC 749 : 1998 SCC (Cri) 1400] to set in motion the process of criminal law against a person is a serious matter.” the criminal court. It “22. The steps taken by the Magistrate under Section 190(1)(a) CrPC followed by Section 10 2021 SCC OnLine SC 1174 48 to appear before 204 CrPC should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged, the court. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would, prima facie, make the accused answerable before the court. No doubt, no formal order or a speaking order is required to be passed at that stage. The Code of Criminal Procedure requires speaking order to be passed under Section 203 CrPC when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 CrPC, if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 CrPC, by issuing process for appearance. The application of mind, is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 CrPC, the High Court under Section 482 CrPC is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before the criminal court as an accused is serious matter affecting one's dignity, self-respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment.” ……… 42. In Birla Corporation Ltd. v. Adventz Investments and Holdings24, the earlier decisions which have been referred to above were cited in the course of the judgment. The Court noted: “26. The scope of enquiry under this section is extremely restricted only to finding out the truth or 49 otherwise of the allegations made in the complaint in order to determine whether process should be issued or not under Section 204 CrPC or whether the complaint should be dismissed by resorting to Section 203 CrPC on the footing that there is no sufficient ground for proceeding on the basis of the statements of the complainant and of his witnesses, if any. At the stage of enquiry under Section 202 CrPC, the Magistrate is only concerned with the allegations made in the complaint or the evidence in support of the averments in the complaint to satisfy himself that there is sufficient ground for proceeding against the accused.” 43. Hence, the Court held: “33. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The application of mind has to be indicated by disclosure of mind on the satisfaction. Considering the duties on the part of the Magistrate for issuance of summons to the accused in a complaint case and that there must be sufficient indication as to the application of mind and observing that the Magistrate is not to act as a post office in taking cognizance of the complaint, in Mahmood Ul Rehman [Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420 : (2016) 1 SCC (Cri) 124]…” 44. The above principles have been reiterated in the judgment in Krishna Lal Chawla v. State of U.P.” (Emphasis supplied) 23. A conjoint consideration of the afore-extracted judgments would lead to an unmistakable conclusion that the Magistrate will have to apply his mind while issuing process under Section 204 of the Cr.P.C. as summoning of the accused cannot be a nonchalant process. 50 24. A now time, in the journey of the judgment, to consider the authorities relied on by the respondents and its effect on the preceding analysis. The learned counsel appearing for the 2nd respondent places reliance upon the judgment of the Apex Court in the case of STATE OF GUJARAT v. AFROZ MOHAMMED HASANFATTA11, in paragraph 24 of the said judgment reads as follows: “24. In the present case, cognizance of the offence has been taken by taking into consideration the charge-sheet filed by the police for the offence under Sections 420, 465, 467, 468, 471, 477-A and 120-B IPC, the order for issuance of process without explicitly recording reasons for its satisfaction for issue of process does not suffer from any illegality.” To consider the contention of the learned counsel for the 2nd respondent/complainant that the issue stands covered by AFROZ insofar as application of mind at the time of taking of cognizance of an offence on filing of a charge sheet is concerned, the facts in the case of AFROZ are required to be noticed. The facts are found in paragraphs 5 and 6, 13.1, 14, 16, 20 of the said judgment and they read as follows: 11 (2019) 20 SCC 539 51 “5. Statement of other witnesses viz. BabubhaiKanjibhai Patel, partner of S. Babulal Angadiya and PravinbhaiJethabhai Patel, Manager of Babulal Angadiya was recorded on 11-8-2014. Charge-sheet was filed under Section 173 CrPC in Criminal Case No. 47715 of 2014 on 18-8-2014 against two persons, namely, Sunil Agarwal and Ratan Agarwal. In the said charge-sheet, the respondent-accused was referred to as a “suspect”. The respondent-accused AfrozHasanfatta was arrested by the police officers of DCB Police Station, Surat on 20-8-2014 for investigation in connection with FIR No. 16 of 2014. The first supplementary charge-sheet was filed under Section 173(8) CrPC in Criminal Case No. 55259 of 2014 against MadanlalManikchand Jain on 30-9-2014, According to the appellant, in the said first supplementary charge-sheet, the respondent-accused was not added as an accused as the statutory period for filing charge-sheet in the case of the respondent-accused had not expired. 6. During the course of further investigation, statement of witnesses CA Surendra Dhareva, AmratbhaiNarottamdas Patel and elder brother of the respondent-accused Jafar Mohammed Hasanfatta, was recorded under Section 161 CrPC. As per the prosecution, the said statement of Jafar Mohammed Hasanfatta, elder brother of respondent-accused shows that the respondent has arranged to transfer Rs. 3,00,00,000 into the account of his brother Jafar Mohammed Hasanfatta through RTGS from Natural Trading Company, owned by co-accused Madanlal Jain. The respondent-accused is the sole proprietor of Nile Industries Pvt. Ltd. Statement of Samir Jiker Gohil, Manager of the said Nile Industries Pvt. Ltd. was recorded on 18-10-2014. According to the prosecution, bank statement of account of the respondent- accused in Union Bank of India, Nanpura Branch from 31-12- 2013 to 25-3-2014 reflects crores of money having been from Natural Trading Company's account to transferred respondent's Company—Nile Trading Corporation. Further bank statement of Nile Trading Corpn. also reflects credit of huge amount into its account from Gangeshwar Mercantile Pvt. Ltd. owned by Madanlal Jain. Based on further investigation, namely, statement of witnesses, bank transactions and copy of call details record between respondent and Madanlal Jain and other accused, second supplementary charge-sheet was filed arraigning the respondent as Accused 1 and Amit alias Bilal Haroon Gilani as Accused 2. Based on the second supplementary 52 charge-sheet, cognizance was taken of the offences under Sections 420, 465, 467, 468, 471, 477-A and 120-B IPC in Criminal Case No. 62851 of 2014 on 15-11-2014 and the Magistrate ordered issuance of summons against the accused arraigned thereon including the respondent Afroz Hasanfatta. … … … … 13.1. (i) While directing issuance of process to the accused in case of taking cognizance of an offence based upon a police report under Section 190(1)(b) CrPC, whether it is mandatory for the court to record reasons for its satisfaction that there are sufficient grounds for proceeding against the accused? the 14. The charge-sheet was filed in Criminal Case No. 47715 of 2014 on 18-8-2014 against the accused persons, namely, Sunil Agrawal and Raton Agrawal. In the first charge- sheet, respondent Afroz Mohammad Hasanfatta (AfrozHasanfatta) was referred to as a suspect. In the second supplementary charge-sheet filed on 15-11-2014 in Criminal Case No. 62851 of 2014, the respondent Afroz is arraigned as Accused 1 and Amit alias BilaiHarcon Gilani as Accused 2. In the second suppliementary charge-sheet, prosecution relies upon the statement of witnesses as well as on certain bank transactions as to flow of money into the account of the respondent Afroz Hasanfatta and his Company Nile Trading Corporation. The order of taking cognizance of the second supplementary charge-sheet and issuance of summons to the respondent AfrozHasanfatta reads as under: “I take in consideration charge-sheet/complaint for the offence of Sections 420, 465, 467, 468 IPC, etc. Summons to be issued against the accused.” … … … … 16. It is well settled that at the stage of issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and the Magistrate is only to be satisfied that there are sufficient grounds for proceeding against the accused. It is fairly well settled that when issuing summons, the Magistrate need not explicitly state the reasons for his satisfaction that there are 53 sufficient grounds for proceeding against the accused. Reliance was placed upon Bhushan Kumar v. State (NCT of Delhi) [Bhushan Kumar v. State (NCT of Delhi), (2012) 5 SCC 424 : (2012) 2 SCC (Cri) 872] wherein it was held as under : (SCC pp. 428-29, paras 11-13) “11. In Chief Enforcement Officer v. Videocon International Ltd. [Chief Enforcement Officer v. Videocon International Ltd.” (2008) 2 SCC 492 : (2008) 1 SCC (Cri) 471] (SCC p. 499, para 19) the expression “cognizance” was explained by this Court as “it merely means ‘become aware of’ and when used with reference to a court or a Judge, it connotes ‘to take notice of judicially’. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone.’ It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons. Under Section 190 of the Code, it is the application of judicial mind to the averments in the complaint that constitutes cognizance. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. If there is sufficient ground for proceeding then the Magistrate is empowered for issuance of process under Section 204 of the Code. 12. A “summons” is a process issued by a court calling upon a person to appear before a Magistrate. It is used for the purpose of notifying an individual of his legal obligation to appear before the Magistrate as a, response to violation of law. In other words, the summons will announce to the person to whom it is directed that a legal proceeding has been started against that person and the date and time on which the person must appear in court. A person who is summoned is legally bound to appear before the court on the given date and time Wilful disobedience is liable to be punished under Section 174 IPC. It is a ground for contempt of court. 13. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a 54 Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a prerequisite for deciding the validity of the summons issued.” … … … (emphasis supplied) … 20. In a case instituted on a police report, in warrant cases, under Section 239 CrPC, upon considering the police report and the documents filed along with it under Section 173 CrPC, the Magistrate after affording opportunity of hearing to both the accused and the prosecution, shall discharge the accused, if the Magistrate considers the charge against the accused to be groundless and record his reasons for so doing. trial — the Then comes Chapter XIX-C — Conclusion of Magistrate to render final judgment under Section 248 CrPC considering the various provisions and pointing out the three stages of the case. Observing that there is no requirement of recording reasons for issuance of process under Section 204 CrPC, in Raj Kumar Agarwal v. State of U.P. [Raj Kumar Agarwal v. State of U.P., 1999 SCC OnLine All 1394 : 1999 Cri LJ 4101], B.K Rathi, J. the learned Single Judge of the Allahabad High Court held as under : (SCC OnLine All paras 8-9) “8…..As such there are three stages of a case. The first is under Section 204 CrPC at the time of issue of process, the second is under Section 239 CrPC before framing of the charge and the third is after recording the entire evidence of the prosecution and the defence. The question is whether the Magistrate is required to scrutinise the evidence at all the three stages and record reasons of his satisfaction. If this view is taken, it will make speedy disposal a dream. In my opinion the consideration of merits and evidence at all the three stages is different. At the stage of issue of process under Section 204 CrPC detailed enquiry regarding the merit and demerit of the cases is not required. The fact that after investigation of the case, the police has submitted the charge-sheet, may be considered as sufficient ground for proceeding at the stage of issue of process under Section 204 CrPC however subject to the 55 condition thai at this stage the Magistrate should examine whether the complaint is barred under any law, …. At the stage of Section 204 CrPC if the complaint is not found barred under any law, the evidence is not required to be considered nor are the reasons required to be recorded. At the stage of charge under Section. 239 or 240 CrPC the evidence may be considered very briefly, though at that stage also, the Magistrate is not required to meticulously examine and to evaluate the evidence and to record detailed reasons. 9. A bare reading of Sections 203 and 204 CrPC shows that Section 203 CrPC requires that reasons should be recorded for the dismissal of the complaint. Contrary to it, there is no such requirement under Section 204 CrPC. Therefore, the order for issue of process in this case without recording reasons, does not suffer from any illegality.” We fully endorse the above view taken by the learned Judge. (Emphasis supplied) The case that the Apex Court was considering was of the Magistrate taking cognizance on a supplementary charge sheet after direction for a further investigation. It is in those circumstances the Apex Court has held that the Magistrate taking cognizance once a charge sheet was already filed against the accused need not bear application of mind. Therefore, the judgment in the case of AFROZ would not be applicable to the facts of the case at Hand, as the facts considered in the case of AFROZ, as aforedone, are distinguishable without much ado. The added circumstance is the latest judgment of the Apex Court in the cases 56 of RAVINDRANATHA BAJPE and SUNIL TODI supra would hold the field with regard to application of mind. The judgments relied on by the learned counsel appearing for the 2nd respondent in the cases of A.R. ANTULAY and P.V. PAVITHRAN are rendered on different set of facts obtaining in those cases considered by the Apex Court and the High Court of Andhra Pradesh. Therefore, none of the judgments relied on by the respondents are applicable to the facts of the case at hand. It is the judgments relied on by the learned Senior Counsel for the petitioner that are overwhelming and sound acceptance on the facts obtaining in the case at hand. 25. In the later judgment, the Apex Court in the case of VIKAS CHANDRA v. STATE OF U.P. UTTAR PRADESH12 has held as follows: “14. In the aforesaid circumstances, the next question to be considered is whether a summons issued by a Magistrate can be interfered with in exercise of the power under Section 482, Cr. P.C. In the decisions in Bhushan Kumar v. State (NCT of Delhi) and Pepsi Foods Ltd.'s case (supra) this Court held that a petition filed under Section 482, Cr. P.C., for quashing an order summoning the accused is maintainable. There cannot be any doubt that once it is held that sine qua non for exercise of the power to issue summons is the subjective 122024 SCC OnLine SC 1534 57 satisfaction “on the ground for proceeding further” while exercising the power to consider the legality of a summons issued by a Magistrate, certainly it is the duty of the Court to look into the question as to whether the learned Magistrate had applied his mind to form an opinion as to the existence of sufficient ground for proceeding further and in that regard to issue summons to face the trial for the offence concerned. In this context, we think it appropriate to state that one should understand that ‘taking cognizance’, empowered under Section 190, Cr. P.C., and ‘issuing process’, empowered under Section 204, Cr. P.C., are different and distinct. (See the decision in Sunil Bharti Mittal v. C.B.I.). … …. … 16. In the decision in S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, this Court held that the settled position for summoning of an accused is that the Court has to see the prima facie evidence. This Court went on to hold that the ‘prima facie evidence’ means the evidence sufficient for summoning the accused and not the evidence sufficient to warrant conviction. The inquiry under Section 202, Cr. P.C., is limited only to ascertain whether on the material placed by the complainant a prima facie case was made out for summoning the accused or not. 17. In an earlier decision in Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi, this Court laid down certain conditions whereunder a complaint can be quashed invoking the power under Section 482, Cr. P.C., thus:— “(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused; 58 (3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.” … … … 20. As per the impugned judgment the High Court went on to consider and held thus:— “As per mandate of this Section, there must be explicit or implicit abetment or some overt act indicative or suggestive of fact that some instigation was given for committing suicide and the applicant was having an interest in it. Nothing has surfaced, which may reflect on the mindset of the applicant that he ever intended the consequence that the deceased would commit suicide and with that view in mind, he stopped payment of salary. Had it been the actual position then obviously the suicide note must have whispered about that particular aspect or it would have at least alluded to that situation, but on careful perusal of the suicide note it explicit that the deceased himself was bent upon committing suicide in case the salary was not drawn in his favour. But under circumstances, there is nothing to suggest that the applicant was conscious of that position and knowing the same situation he insisted that he would not pay the salary in question. The trial court, legal aspects took however, cognizance of the offence by rejecting the final report submitted by the Investigating Officer and issued process against the applicant by way of summoning. Resultantly, this application is allowed. Criminal proceedings of impugned order dated 05.04.2012 passed by Chief Judicial Magistrate, Shahjahanpur in Criminal Case No. 1478 of 2012, Vikas v. Ram Babu, Case Crime No. C-2 of 2005, under Section 306 IPC, Police Station-Alhaganj, District Shahjahanpur by which the applicant has been summoned to face the trial is hereby quashed.” ignoring all these (Emphasis supplied) 59 The Apex Court, again, in the case of JM LABORATORIES V. STATE OF ANDHRA PRADESH13 has held as follows: “8. In the judgment and order of even date in criminal appeal arising out of SLP (Crl.) No. 2345 of 2024 titled “INOX Air Products Limited Now Known as INOX Air Products Private Limited v. The State of Andhra Pradesh”, we have observed thus: “33. It could be seen from the aforesaid order that except recording the submissions of the complainant, no reasons are recorded for issuing the process against the accused persons. 34. In this respect, it will be relevant to refer to the following observations of this Court in the case of Pepsi Foods Ltd. v. Special Judicial Magistrate (1998) 5 SCC 749 (supra): “28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.” to 13 2025 SCC online SC 208 60 35. This Court has clearly held that summoning of an accused in a criminal case is a serious matter. It has been held that the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. This Court held that the Magistrate is required to examine the nature of allegations made in the complaint and the evidence, both oral and documentary in support thereof and as to whether that would be sufficient for proceeding against the accused. It has been held that the Magistrate is not a silent spectator at the time of recording of preliminary evidence before summoning the accused.
Arguments
been camping at Shri Raghuttama Math, Kekkar, Honnavar, a branch of the Math. The petitioner/Pontiff amongst others were undertaking certain rituals and conducted Ramakatha in different parts, the last of which was conducted on 25-08-2014. During the 6 period between 12-07-2014 and 15-07-2014 certain disputes arose in the Math which resulted in a complaint being lodged in Crime No.342 of 2014 on 17-08-2014 for the offences punishable under Sections 120B, 153A & B, 384, 389, 420, 504, 506, 511 and 34 of the IPC and Section 66A of the Information Technology Act, 2000. The complaint comes to be closed on filing of ‘B’ report. The ‘B’ report was protested and the concerned Court took cognizance of the offence. 6. When things stood thus, one Ms. Amshumathi Shastry, daughter of accused No.1 in Crime No.342 of 2014 registers a complaint on 26-08-2014 before the Banashankari Police alleging sexual harassment against her mother by the petitioner/Pontiff which becomes a crime in Crime No.219 of 2014 for offences punishable under Sections 354A and 506 of the IPC. The Police conduct investigation and file a charge sheet against the petitioner which comes to be challenged in Criminal Revision Petition No. 550 of 2016 which is pending consideration, is the averment in the petition. Later the 2nd respondent registers a complaint on 29-08-2015 which becomes a crime in Crime No.257 of 2015 and 7 the Police after investigation filed a charge sheet in the matter and the matter is pending consideration as C.C.No.26533 of 2018. It is this that has driven the petitioner to this Court in the subject petition. 7. The learned counsel, Sri P.N. Manmohan representing the petitioner, would vehemently contend that the complaint having been registered 9 years after the alleged incident would undoubtedly be vitiated, as also the entire proceedings, as the delay in registering the complaint is not explained satisfactorily, let alone satisfactorily, it is not even explained. He would further contend that all other issues that are projected in the case at hand are all answered by this very Court concerning a case in Writ Petition 56754 of 2018 qua accused No.2. It is his submission that the facts obtaining in the case at hand are stronger than what was projected in the case concerning accused No.2. 8. Per contra, learned counsel Sri Aravind M. Neglur representing the 2nd respondent/complainant would submit that the issue of delay would not vitiate the proceedings. Those proceedings 8 were against accused No.2. The petitioner is accused No.1. Therefore, delay cannot be projected as a vitiating factor. In the case at hand, it is a matter of trial where the petitioner is required to come out clean. Insofar as the other submissions made, which are all considered in the aforesaid W.P.No.56754 of 2018, he would contend that this Court, in its operative portion has held that the findings therein would not become applicable to any accused. He would submit that therefore it should not be made applicable to this accused. He would submit that this Court should independently consider this petition and not toe the lines of accused No.2. 9. The learned High Court Government Pleader would also toe the lines of the learned counsel for the 2nd respondent/complainant. 10. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record. In furtherance whereof, the following issues would arise for my consideration: (i) Whether there the complaint/registration of the FIR and the said delay would vitiate the entire proceedings? delay filing in is 9 (ii) Whether the learned Magistrate taking cognizance of the offence on the basis of a final report filed by the policeman who was in fact not an officer in-charge of the police station, has vitiated the entire proceedings? (iii) Whether cognizance learned Magistrate on the final report and issuance of process suffers from non-application of mind and would be contrary to Section 204 of the Cr.P.C.? taken by the Issue No.1: Whether there is delay in filing the complaint/registration of the FIR and the said delay would vitiate the entire proceedings? 11. Since the entire issue has now sprang from a registration of the complaint, I deem it appropriate to notice the complaint so registered by the 2nd respondent, it reads as follows: “²æêÀÄw xxxx xxxx xxxx. gÀªÀjUÉ, oÁuÁ¢üPÁjUÀ¼ÀÄ, Vj£ÀUÀgÀ ¥Éưøï oÁuÉ, ¨ÉAUÀ¼ÀÆgÀÄ. ªÀiÁ£ÀågÉÃ, 10 £Á£ÀÄ ¥Àæ¸ÀÄÛvÀ ªÉÄîÌAqÀ «¼Á¸ÀzÀ°è ªÁ¸ÀªÁVgÀÄvÉÛãÉ. £À£Àß vÀAzÉ- vÁ¬ÄAiÀĪÀgÀÄ ²gÀ¹AiÀÄ ¸À«ÄÃ¥ÀzÀ ªÀÄwÛWÀlÖ JA§°è §qÀPÀȶPÀgÁVzÁÝgÉ. £Á£ÀÄ £À£Àß ºÉʸÀÆÌ®Ä «zÁå¨sÁå¸ÀªÀ£ÀÄß ºÉƸÀ£ÀUÀgÀ ²æÃgÁªÀÄZÀAzÁæ¥ÀÄgÀ ªÀÄoÀ £ÀqɸÀĪÀ ¸ÁUÀgÀ vÁ®ÆèQ£À ZÀzÀÄgÀªÀ½îAiÀÄ ²æà ¨sÁgÀwà «zÁå¤PÉÃvÀzÀ°è DgÀA©ü¹zÉ. 8 ªÀÄvÀÄÛ 9£Éà vÀgÀUÀw C®èzÉ 10£Éà vÀgÀUÀwAiÀÄ DgÀA¨sÀzÀ wAUÀ¼ÀÄ £Á£ÀÄ CzÉà ªÀ¸ÀwAiÀÄÄvÀ ±Á¯ÉAiÀÄ°è ªÁå¸ÀAUÀ ªÀiÁqÀÄwÛzÉÝ. 2006gÀ°è ±Á¯ÉAiÀÄ°èzÀÝ ¸ÀAzÀ¨s 10£Éà vÀgÀUÀwAiÀÄ ¥ÁægÀA¨s æÃgÀuɬÄAzÀ¯Éà ªÀiÁqÀÄvÉÛêÉ. ²æÃgÁªÀÄ£À CªÀvÁgÀªÉà DVgÀÄvÉÛêÉ. ²æÃgÁªÀÄ£À ¥É ÀðUÀ¼À°è £ÁªÀÅ ±Á¯Á «zÁåyðUÀ¼ÀÄ ²æÃgÁªÀÄZÀAzÁæ¥ÀÄgÀ ªÀÄoÀzÀ°è £ÀqÉAiÀÄĪÀ «±ÉõÀ PÁAiÀÄðPÀ æªÀÄUÀ½UÉ, UÀÄgÀÄUÀ¼À zÀ±Àð£À ºÁUÀÆ ¸ÉêÉUÉ ºÉÆÃUÀÄwÛzÉݪÀÅ. 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J®èªÀÇ ¸À» ºÉÆÃUÀÄvÀÛzÉ. £ÁªÀÅ PÀgÉzÁUÀ¯É®è §gÀÄvÁÛ EgÀ¨ÉÃPÀÄ” JAzÀÄ ºÉýzÀgÀÄ. F WÀl£É¬ÄAzÀ ªÀÄvÉÛ wêÀ æ ªÀiÁ£À¹PÀ MvÀÛqÀPÉÆ̼ÀUÁzÉ. UÀÄgÀÄUÀ¼ÀÄ ¸Àj¬Ä®è JAzÀÄ £À£Àß UÀAqÀ£À°è £Á£ÀÄ ºÉýzÀgÀÆ CªÀgÀÄ CzÀ£ÀÄß Q«UÉ ºÁQPÉƼÀÄîwÛgÀ°®è. C®èzÉ UÀÄgÀÄUÀ¼ÀÄ PÀgÉzÁUÀ ¤Ã£ÀÄ CªÀgÀ°èUÉ ºÉÆÃUÀ¨ÉÃPÀÄ, CªÀgÀÄ K£ÀÄ ªÀiÁrzÀgÀÆ ¸ÀºÀPÀj¸À¨ÉÃPÀÄ JAzÀÄ £À£Àß UÀAqÀ£Éà F jÃw ºÉýzÁUÀ £À£ÀUÉ DWÁvÀªÁ¬ÄvÀÄ. 12 F WÀl£ÉUÀ¼À £ÀAvÀgÀ ¥ÉæêÀÄ®vÁ ¥ÀæPÀgÀt ºÉÆgÀ§AzÀ ªÉÄÃ¯É £À£Àß fêÀ£ÀzÀ°è ªÀÄvÉÛ C¯ÉÆèî PÀ¯ÉÆèî DgÀA¨sÀªÁ¬ÄvÀÄ. ¥ÀæPÀgÀtzÀ §UÉÎ ¹LrUÀ¼ÀÄ ºÀ®ªÀgÀ£ÀÄß «ZÁgÀuÉ £ÀqɸÀÄwÛzÀÝ ¸ÀAzÀ¨sÀðzÀ°è ¸É¥ÉÖA§gï 13£Éà vÁjÃQ£ÀAzÀÄ £Á£ÀÄ vÀAzÉAiÀÄ ªÀÄ£ÉAiÀÄ°èzÁÝUÀ C°èUÉ §AzÀ CgÀÄt±ÁåªÀÄ, C£ÀAvÀtÚ, gÀªÉÄñÀtÚ, ¸ÀÄzsÁPÀgÀ, ªÀÄzsÀÄPÀgÀ CªÀgÀÄ “UÀÄgÀÄUÀ¼ÀÄ ¤£ÀߣÀÄß ªÀÄoÀPÉÌ PÀgÉzÀÄPÉÆAqÀÄ §gÀ®Ä £ÀªÀÄä£ÀÄß PÀ½¹zÁÝgÉ. PÀÆqÀ¯Éà ºÉÆgÀqÀÄ JAzÁUÀ £Á£ÀÄ UÁ§jUÉÆAqÀÄ §gÀĪÀÅ¢®è JAzÉ. DUÀ EªÀgÉ®è ¸ÉÃj £À£ÀߣÀÄß J¼ÉzÀÄ £À£ÀߣÀÄß §¯ÁvÁÌgÀ¢AzÀ CªÀgÀÄ §A¢zÀÝ mÉÆAiÉÆÃmÁ E£ÉÆêÁ PÁjUÉ ºÁQ PÀĪÀÄmÁ ¸À«ÄÃ¥ÀzÀ PÉPÁÌgÀÄ ªÀÄoÀPÉÌ C¥ÀºÀj¹ PÀgÉzÉÆAiÀÄÝgÀÄ. C°è gÁWÀªÉñÀégÀ ¨sÁgÀw UÀÄgÀÄUÀ¼ÀÄ “¤Ã£ÀÄ £ÀªÀÄä ¥ÀgÀªÁV ¹Lr ¥ÉÆðøÀgÀ JzÀÄgÀÄ ¸ÁQë ºÉýzÀgÉ CxÀªÁ F »AzÉ £ÀqÉzÀ WÀl£É §UÉÎ K£ÁzÀgÀÆ ºÉýzÀgÉ ¤£ÀߣÀÄß, ¤£Àß vÀAzÉvÁ¬ÄAiÀĪÀgÀ£ÀÄß ªÀÄÄV¹ ©qÀÄvÉÛêɔ JAzÀÄ £À£ÀUÉ PÉÆ®ÄèªÀ ¨ÉzÀjPÉ ¤ÃrzÀgÀÄ. CzÉà jÃw £À£ÀߣÀÄß C°èUÉ §®ªÀAvÀ¢AzÀ PÀgÉzÉÆAiÀÄÝ ªÉÄÃ¯É w½¹zÀ ªÀÄA¢ “UÀÄgÀÄUÀ¼ÀÄ ºÉýzÀAvÉ ¤Ã£ÀÄ ªÀÄvÀÄÛ ¤£Àß vÀAzÉAiÀÄ£ÀÄß ªÀÄÄV¹©qÀÄvÉÛêɔ JAzÀÄ ºÉýzÀgÀÄ. dvÉVzÀÝ vÀAzÉAiÀĪÀjUÀÆ ¨ÉzÀjPÉ ºÁQzÀgÀÄ. EzÀgÀ £ÀAvÀgÀ £Á£ÀÄ gÀPÀëuÉ ¤ÃqÀ®Ä ¥ÉưøÀgÀ®Æè «£ÀAw ªÀiÁrzÉÝ. vÀzÀ£ÀAvÀgÀ gÁWÀªÉñÀégÀ ¨sÁgÀwà ¥ÀæPÀgÀtzÀ §UÉÎ ¹Lr PÀbÉÃjUÉ £Á£ÀÄ «ZÁgÀuÉUÉ ºÁdgÁUÀĪÀ PÉ® ºÉÆwÛUÉ ªÀÄÄ£Àß dUÀ¢Ã±À ±ÀªÀÄð CªÀgÀ ¥sÉÆä¤AzÀ (9449595222, 9448356785, 9632598506 - F ªÀÄÆgÀÄ £ÀA§gÀÄUÀ¼À°è MAzÀjAzÀ) PÀgÉ ªÀiÁrzÀ UÀÄgÀÄUÀ¼ÀÄ “ºÀ¼ÉAiÀÄzÀÄ AiÀiÁªÀÅzÀ£ÀÆß ºÉüÀ¨ÉÃqÀ. ¤£Àß «ZÁgÀPÀÆÌ F ¥ÀæPÀgÀtPÀÆÌ ¸ÀA§AzsÀ E®è. £ÀªÀÄä «gÀÄzÀÞ ªÀiÁvÀ£ÁrzÀgÉ §zÀÄPÀÄ ¸ÀªÀð£Á±ÀªÁUÀÄvÀÛzÉ, ¤£ÀUÉ M¼ÉîAiÀÄzÁUÀĪÀÅ¢®è” JAzÀÄ ªÀÄvÉÛ ºÉzÀj¹zÀgÀÄ. C®èzÉ ¹Lr JzÀÄgÀÄ «ZÁgÀuÉ JzÀÄj¸ÀÄwÛzÁÝUÀ¯Éà dUÀ¢Ã±À ±ÀªÀÄð £À£ÀUÉ ªÁmïì D¥ï£À°è ªÉĸÉÃeï PÀ½¹zÀgÀÄ. F ªÉĸÉÃd£ÀÄß £Á£ÀÄ ¹Lr C¢üPÁjAiÀiÁzÀ ²æêÀÄw ¹jUËj ºÁUÀÆ ¥ÀÄgÀıÉÆÃvÀÛªÀÄ CªÀjUÉ vÉÆÃj¹zÉ. CªÀgÀÄ F ªÉĸÉÃdÄUÀ¼À£ÀÄß CªÀgÀ ¥sÉÆÃ£ï £ÀA§jUÉ ¥sÁªÀðqïð ªÀiÁrPÉÆAqÀgÀÄ. ¹Lr C¢üPÁjUÀ¼ÀÄ £À£ÀߣÀÄß D ¥ÀæPÀgÀtzÀ°è «ZÁj¹zÁUÀ £À£Àß ªÉÄÃ¯É UÀÄgÀÄUÀ¼ÀÄ ªÀiÁrgÀĪÀ CvÁåZÁgÀzÀ §UÉÎ w½¸À®Ä F J¯Áè ¨ÉzÀjPÉUÀ¼À PÁgÀt zsÉÊAiÀÄð §A¢gÀ°®è. ²æà gÁWÀªÉñÀégÀ ¨sÁgÀwÃ, CªÀgÀ ¨ÉA§°UÀgÀÄ £À£ÀߣÀÄß §¯ÁvÁÌgÀªÁV Vj£ÀUÀgÀ¢AzÀ C¥ÀºÀj¹ PÉPÁÌgÀÄ ªÀÄoÀzÀ°è ¢UÀâAzsÀ£À ªÀiÁr fêÀ ¨ÉzÀjPÉ ªÀiÁrzÀÝ®èzÉ UÀÄgÀÄUÀ¼ÀÄ £À£ÀUÉ JgÀqÀÄ ¨Áj, CAzÀgÉ MªÉÄä 15 ªÀµÀð ªÀAiÀĹì£ÀªÀ½zÁÝUÀ ªÀÄvÀÄÛ ªÀÄvÉÆÛªÉÄä ªÀÄzÀĪÉAiÀiÁzÀ £ÀAvÀgÀ ªÉÄÃ¯É ºÉýzÀAvÉ CvÁåZÁgÀ ªÀiÁrgÀÄvÁÛgÉ. F §UÉÎ PÀÆqÀ¯Éà vÀ¤SÉ £Àqɹ PÁ£ÀÆ£ÀÄ PÀæªÀÄ PÉÊUÉÆAqÀÄ £À£ÀUÉ £ÁåAiÀÄ MzÀV¸À¨ÉÃPÁV PÉýPÉƼÀÄîvÉÛãÉ.` Ew vÀªÀÄä «±Áé¹, ¸À»/- xxxx.” (Emphasis added) 13 The complaint alleges certain offences against several persons. Insofar as the present petitioner is concerned, it begins and stops in 2006. The allegation is in the year 2006 that the Pontiff used to touch her inappropriately and make her sit on his lap and she gets married in 2009 to accused No.2. The story between the husband and the wife would begin later. Vague references are made to the act of the petitioner. Therefore, it is a case where the incident of 2006 or even 2009 is sought to be complained of by registering a complaint on 29-08-2015, 9 or 6 years thereafter. 12. The police, after investigation, have filed a charge sheet. The summary of the charge sheet as obtaining in column No.7 reads as follows: “¨ÉAUÀ¼ÀÆgÀÄ£ÀUÀgÀ Vj£ÀUÀgÀ ¥Éưøï oÁuÉ ªÉÆ.¸ÀA.257/15 PÀ®A: PÀ®A:323, 376, 376(2)(J¥sï)(L)(J£ï), 498(J), 109 L¦¹ ¥À æPÀgÀtzÀ PÁ®A £ÀA:17 2004-05(cid:1)ೇ (cid:4)ಾ(cid:6)ನ(cid:6)(cid:8) ಚದುರವ(cid:14)(cid:15)ಯ(cid:6)(cid:8)ರುವ (cid:17)ಾರ(cid:18) (cid:19)(cid:20)ಾ(cid:21)(cid:22)(cid:23)ೇತನ (cid:25)ಾ(cid:26)ೆ(cid:27)ೆ (cid:28)ರ(cid:28) vÁ®ÆèPÀÄ, ಮ(cid:18)(cid:30)ಘಟ! (cid:27)ಾ"ಮದ xxxx (#$ಾ%&) 8(cid:1)ೇ ತರಗ(cid:18)ಯ (ಾ(cid:21)ಸಂಗ(cid:23)ೆ+ (cid:20)ಾಖ(cid:26)ಾ-ದು., DgÉÆæ ²æà gÁWÀªÉñÀégÀ ¨sÁgÀw ¸Áé«ÄÃfAiÀĪÀgÀÄ xxxx AiÀÄ£ÀÄß M¼ÉîAiÀÄ jÃw¬ÄAzÀ ªÀiÁvÀ£Ár¸ÀÄwÛzÀÄÝzÁÝV, DPÉAiÀÄ §UÉÎ ºÉaÑ£À PÁ¼Àf ªÀ»¸ÀÄwÛzÀÄÝ, EzÀjAzÀ xxxx ¸Áé«ÄÃfAiÀÄ£ÀÄß (cid:20)ೇವರ ಅವ0ಾರ ಎಂದು ನಂ2ದ.ರು. 2006(cid:1)ೇ (cid:4)ಾ(cid:6)ನ(cid:6)(cid:8) 15 ವಷ% ವಯ(cid:28)4ನ (ಹು6!ದ &(cid:1)ಾಂಕ: 26.03.1991) ¦AiÀiÁðzÀÄ(cid:20)ಾರರು 10(cid:1)ೇ ತರಗ(cid:18)ಯ(cid:6)(cid:8)(cid:20)ಾ.ಗ ಆ9ೋಗ(cid:21)ದ (cid:19)ಷಯದ(cid:6)(cid:8) ಏರು-<ೇ9ಾ-ದ.=ಂದ ಅzÀ£ÀÄß (cid:18)(cid:14)ಸಲು ?ೊಸನಗರದ @"ೕ 9ಾಮಚಂದ"ಪBರ ಮಠ(cid:23)ೆ+ ಬಂ&ದ.ರು. ಮಠದ(cid:6)(cid:8) ಏ(cid:23)ಾಂತ(ಾ- Eಾ0ಾಡುವ ವ(cid:21)ವ(cid:4)ೆG ಇದು.. ಆ(cid:27)ಾ(cid:27)ೆI 14 (cid:4)ಾJKೕLಯವರು xxxx ತ£Àß ಏ(cid:23)ಾಂತ (cid:23)ೊಠN(cid:27)ೆ PÀgÉಯ(cid:28) Eಾತ(cid:1)ಾಡು0ಾ(cid:30) ತನO 0ೊPೆಯ Qೕ(cid:26)ೆ ಕೂ=(cid:28)(cid:23)ೊಂಡು ಆ(cid:23)ೆಯ Qೖ-(cid:23)ೈಗಳನುO ಮು6! ¦æÃ(cid:18) (cid:19)(cid:25)ಾJಸ&ಂದ Eಾತ(cid:1)ಾN(cid:28) ಈಗ (cid:1)ಾವB UಾತುEಾ%ಸ(cid:21) ಆಚರVೆಯ(cid:6)(cid:8)(cid:20)ೆ.ೕ(ೆ. (cid:1)ಾವB ಎಲ(cid:8)ವನುO @"ೕ9ಾಮನ <ೆ"ೕರVೆWಂದ(cid:26)ೇ Eಾಡು0ೆ(cid:30)ೕ(ೆ. @"ೕ9ಾಮನ ಅವ0ಾರ(ೆ (cid:1)ಾನು ಅವರ <ೆ"ೕರVೆಯಂ0ೆ (cid:22)ನOನುO ಇ(cid:6)(cid:8)(cid:27)ೆ ಕ9ೆW(cid:28)(cid:20)ೆ.ೕ(cid:1)ೆ. (cid:22)ನO Xಾತಕದ(cid:6)(cid:8) (cid:23)ೆಲವB (cid:20)ೋಷಗ(cid:14)(ೆ ಅದನುO ಪ=ಹ=ಸು0ೆ(cid:30)ೕ(ೆಂದು £ÀA©(cid:28), ಆ(cid:23)ೆಯ ಮುಗY0ೆಯನುO ಬಳ(cid:28)(cid:23)ೊಂಡು ಆ(cid:23)ೆಯ Qೕ(cid:26)ೆ ಎರ- Zರುಚದಂ0ೆ [ಾW Qೕ(cid:26)ೆ (cid:23)ೈ ಇಟು! [ಾWಯನುO ಮು\] ಅ<ಾ"ಪ(cid:30) [ಾಲZ$ಾ-ದ.ರೂ ಸಹ ಬಲವಂತ(ಾ- ಆ9ೋ# (cid:4)ಾJKೕL ºÀoÀಸಂ(cid:17)ೋಗ EಾNರು0ಾ(cid:30)9ೆ. ಆ ಸಮಯದ(cid:6)(cid:8) xxxx ಪ"(cid:18)ಭ6(cid:28)ದರೂ ಸಹ ಅವ=ಂದ 2N(cid:28)(cid:23)ೊಳ(cid:15)ಲು (cid:4)ಾಧ(cid:21)(ಾಗ(cid:20)ೆ ?ಾಗೂ ಈ (cid:19)ಷಯವನುO $ಾ=(cid:27)ಾದರೂ ?ೇ(cid:14)ದ9ೆ ಗುರು(cid:25)ಾಪ ತಟು!ತ(cid:30)(cid:20)ೆ ಇನುO ಮುಂ(cid:20)ೆ 9ಾಮನ ಅನುಗ"ಹ ಆ- (cid:22)ನ(cid:27)ೆ ಒaೆ(cid:15)ಯ(cid:20)ಾಗುತ(cid:30)(cid:20)ೆಂದು ನಂ2(cid:28)ದು. ತ(cid:22)bೆWಂದ ದೃಡಪಟ! Qೕ9ೆ(cid:27)ೆ ಆ9ೋ#-1 @"ೕ 9ಾಘ(ೇಶJರ (cid:17)ಾರ(cid:18) (cid:4)ಾJKೕLಯವರ (cid:19)ರುದY PÀ®A: 376, 376(2) (J¥sï) (L) L¦¹ jÃvÁå ¸À°è¹PÉÆArgÀĪÀ zÉÆõÁgÉÆÃ¥Àt¥ÀnÖ. ನಂತರ (cid:4)ಾJKೕLಯವರು ಮಠದ ಪ=(ಾರದ ಸದಸ(cid:21) ?ಾಗೂ (cid:4)ಾJKೕLಯ @ಷ(cid:21)(cid:1)ಾದ ಮಂಜು(cid:1)ಾf ?ೆ[ಾgh ಎಂಬುವರ Xೊ0ೆ xxxx ಯನುO ಮದು(ೆ EಾN(cid:28)ದು.. ಮದು(ೆ$ಾದ-ನಂತರ xxxx ಮತು(cid:30) ಮಂಜು(cid:1)ಾf ?ೆ[ಾgh ನಡು(ೆ ಸಂ(cid:4)ಾ=ಕ (cid:19)Uಾರದ(cid:6)(cid:8) ಮನ(cid:4)ಾ(cid:30)ಪಗaಾ-ದ. (cid:23)ಾರಣ xxxx (cid:19)(ಾಹ (cid:19)Uೆ]ೕಧ(cid:1)ೆ EಾN(cid:23)ೊಳj(cid:15)ವ ಸಲು(ಾ- £Áå$ಾಲಯದ Q6!(cid:26)ೇ=ದು. ಈ (cid:19)UಾರವB (cid:4)ಾJKೕLಯವರ ಗಮನ(cid:23)ೆ+ ಬಂ&ದ.=ಂದ ¸Áé«ÄÃLಯವರು ಸಮಯ (cid:1)ೋN 2012£Éà (cid:4)ಾ°ನ(cid:6)(cid:8) [ೆಂಗಳkರು ನಗರದ -=ನಗರ ಮಠದ(cid:6)(cid:8) xxxx ಯನುO ಮಠ(cid:23)ೆ+ ಕ9ೆW(cid:28) ಮಠದ(cid:6)(cid:8)ನ ತನO ಏ(cid:23)ಾಂತ (cid:23)ೊಠNಯ(cid:6)(cid:8) ಮಂಜು(cid:1)ಾf ?ೆ[ಾgh(cid:1)ೊಂ&(cid:27)ೆ ಸಂ(cid:4)ಾರವನುO ನPೆ(cid:28)(cid:23)ೊಂಡು ?ೋಗುವಂ0ೆ ಬು&.(ಾದ ?ೇ(cid:14)ದು.. ಆಗ xxxx ಆತ(cid:1)ೊಂ&(cid:27)ೆ ಸಂ(cid:4)ಾರ ನPೆಸಲು (cid:4)ಾಧ(cid:21)(ಾಗು(cid:18)(cid:30)ಲ(cid:8). ತನ(cid:27)ೆ (cid:19)Uೆ]ೕಧ(cid:1)ೆ (cid:23)ೊN(cid:28) ಎಂದು (cid:23)ೇ(cid:14)ದ.(cid:23)ೆ+ (cid:23)ೋಪ(cid:27)ೊಂಡ (cid:4)ಾJKೕL xxxx ಯ [ಾWಯನುO ಮು6! Xೋ9ಾ- ಒದು. (cid:23)ೆಳ(cid:23)ೆ+ ತ(cid:14)(cid:15), (cid:23)ಾ(cid:6)(cid:22)ಂದ ತು(cid:14)ದು (cid:4)ಾJKೕL ಒ0ಾ(cid:30)ಯ ಪlವ%ಕ(ಾ- ಹಠಸಂ(cid:17)ೋಗ EಾNರುವBದು ತ(cid:22)bೆWಂದ ದೃಡಪಟ! Qೕ9ೆ(cid:27)ೆ ಆ9ೋ#-1 @"ೕ 9ಾಘ(ೇಶJರ (cid:17)ಾರ(cid:18) (cid:4)ಾJKೕLಯವರ (cid:19)ರುದY ಕಲಂ:323, 376, 376(2)(ಎm) ಐ#(cid:28) =ೕ0ಾ(cid:21) (cid:20)ೋoಾ9ೋಪಣಪ6!. ಈ ಪ"ಕರಣದ ಎ2 ಆ9ೋ# ಮಂಜು(cid:1)ಾf ?ೆ[ಾgh ಈತನು ಎ1 @"ೕ 9ಾಘ(ೇಶJರ (cid:17)ಾರ(cid:18) (cid:4)ಾJKೕL ರವರ ಪ=(ಾರದ ಸದಸ(cid:21)(cid:1)ಾ-ದು., (cid:4)ಾJKೕLಯವರ @ಷ(cid:21)(cid:1)ಾ-ರು0ಾ(cid:30)(cid:1)ೆ. (cid:1)ೊಂದ ಮpaೆ xxxx ಎ2 ಆ9ೋ#qಂ&(cid:27)ೆ 2009(cid:1)ೇ (cid:4)ಾ(cid:6)ನ(cid:6)(cid:8) ಮದು(ೆ$ಾ-ದು.. ಮದು(ೆ$ಾದ ನಂತರ ಎ2 ಆ9ೋ# ರವರು (cid:1)ೊಂದ ಮpaೆ xxxx (cid:27)ೆ Eಾನ(cid:28)ಕ(ಾ- ಮತು(cid:30) (cid:20)ೈpಕ(ಾ- Zರುಕುಳ (cid:22)ೕN, D(cid:27)ಾ(cid:27)ೆI ಮಠ(cid:23)ೆ+ ?ೋ- ಹಣ ಪPೆದು(cid:23)ೊಂಡು ಬರುವಂ0ೆ ಮತು(cid:30) (cid:4)ಾJKೕL ಕ9ೆ(cid:20)ಾಗ (cid:22)ೕನು ಅ(cid:6)(cid:8)(cid:27)ೆ ?ೋ- ಅವರು ಏನು EಾNದರೂ ಸಹಕ=ಸ[ೇ(cid:23)ೆಂದು ಒ0ಾ(cid:30)ಯ EಾN 0ೊಂದ9ೆ(cid:23)ೊ6!ರುವBದು ತ(cid:22)bೆWಂದ ದೃಡಪ6!ರುವBದ=ಂದ ಎ2 ರವರ (cid:19)ರುದY ಕಲಂ: 498(ಎ), 109 R/w 376, 376(2)(ಎr) ಐ#(cid:28) =ೕ0ಾ(cid:21) (cid:20)ೋoಾ9ೋಪಣಪ6!.” 15 The summary of the charge sheet also stops at 2006 or 2009. Ostensibly so, as from 2009 the problems between the husband and the wife are narrated in the complaint. Therefore, there is delay in registering the complaint. There is no satisfactory explanation for the delay of 9 years in registering the complaint. Whether the delay in cases of offences punishable under Section 376 of the IPC would cut at the root of the matter and vitiate the entire proceedings is necessary to be noticed. 13. The issue whether unexplained delay would vitiate the registration of the complaint even in cases of the offence punishable under Section 376 of the IPC need not detain this Court for long or delve deep into the matter. The Apex Court in the case of KISHAN SINGH v. GURPAL SINGH1 holds as follows: “22. In cases where there is a delay in lodging an FIR, the court has to look for a plausible explanation for such delay. In the absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an afterthought or had given a coloured version of events. In such cases the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before the civil court may 1 (2010) 8 SCC 775 16 initiate criminal proceedings just to harass the other side with mala fide intentions or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of (Vide Chandrapal the Singh v. Maharaj Singh [(1982) 1 SCC 466 : 1982 SCC (Cri) 249 : (1982) 1 SCC 466 : AIR 1982 SC 1238]; State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426 : 1992 Supp (1) SCC 335 : AIR 1992 SC 604]; G. Sagar Suri v. State of U.P. (2000) 2 SCC 636 : 2000 SCC (Cri) 513 : (2000) 2 SCC 636 : AIR 2000 SC 754]; and GorigePentaiah v. State SCC 531 : (2009) 1 SCC (Cri) 446])” A.P[(2008) case. 12 of The Apex Court, on the aforesaid issue, in the case of PARKASH CHAND v. STATE OF HIMACHAL PRADESH2 has held as follows: (Emphasis supplied) “20. There is admittedly a delay of 7 months in lodging the FIR in the case of alleged rape. If the case is reported immediately apart from the inherent strength of the case flowing from genuineness attributable to such promptitude, the perceptible advantage would be the medical examination to which the prosecutrix can be subjected and the result of such examination in a case where there is a resistance. It is the case of the prosecution that she raised hue and cry and therefore apparently she would have resisted. Possibly, a medical examination may have revealed 2 (2019) 5 SCC 628 17 signs of any resistance or injuries. In this case the High Court has proceeded on the basis of testimony of the prosecutrix and sought to fortify it by the extra-judicial confession made before PW4 and PW5.” The Apex Court in the case of RAJESH PATEL v. STATE OF JHARKHAND3, has held as follows: “…. …. …. 16. Further, there is an inordinate delay of nearly 11 days in lodging the FIR with the jurisdictional police. The explanation given by the prosecutrix in not lodging the complaint within the reasonable period after the alleged offence committed by the appellant is that she went to her house and narrated the offence committed by the appellant to her mother and on the assurance of Purnendu Babu, PW 3, the mother remained silent for two to four days on the assurance that he will take action in the matter. Further, the explanation given by the prosecutrix regarding the delay is that at the time of commission of offence the appellant had threatened her that in case she lodges any complaint against him, she would be killed. The said explanation is once again not a tenable explanation. Further, in the reason assigned by the High Court regarding not lodging the complaint immediately or within a reasonable period, it has observed that in case of rape, the victim girl hardly dares to go to the police station and make the matter open to all out of fear of stigma which will be attached with the girls who are ravished. Also, the reason assigned by the trial court which justifies the explanation offered by the prosecution regarding the delay in lodging the complaint against the appellant has been erroneously accepted by the High Court in the impugned judgment [ Criminal Appeal No. 58 of 1999, decided on 14-11-2006 (Jhar)] . In addition to that, further observation made by the High Court regarding the delay is that the prosecutrix as well as her mother tried to get justice by interference of PW 3, who is a common friend of both of them 3 (2013) 3 SCC 791 18 and PW 4, the doctor with whom the prosecutrix was working as a nurse. When the same did not materialise, after a lapse of 11 days, the FIR was lodged with the jurisdictional police for the offence said to have been committed by the appellant. Further, the High Court has also proceeded to record the reason that the prosecutrix had every opportunity to give different date of occurrence instead of 14-2-1993 but she did not do it which reason is not tenable in law. Further, the High Court accepted the observation made by the learned trial Judge wherein the explanation given by the prosecutrix in her evidence about being terrorised to be killed by the appellant in case of reporting the matter to the police, is wholly untenable in law. The same is not only unnatural but also improbable. Therefore, the inordinate delay of 11 days in lodging the FIR against the appellant is fatal to the prosecution case. This vital aspect regarding inordinate delay in lodging the FIR not only makes the prosecution case improbable to accept but the reasons and observations made by the trial court as well as the High Court in the impugned judgments are wholly untenable in law and the same cannot be accepted. Therefore, the findings and observations made by the courts below in accepting delay in lodging the FIR by assigning unsatisfactory reasons cannot be accepted by this Court as the findings and reasons are erroneous in law. 17. Further in the case in hand, PW 3, who is a common friend of the appellant and the prosecutrix, according to the prosecution case, has categorically stated that he does not know anything about the case for which he had received the notice from the court to depose in the case. PW 4 has stated in his evidence that the prosecutrix was getting nursing training privately in his chamber for the last three years as on the date of his examination, namely, on 16-11-1995. He has stated in his examination-in-chief that on 14-2-1993 when he opened his chamber the prosecutrix came to his chamber and further stated that her mother did not tell him anything. He has been treated as hostile by the prosecution, he was cross-examined by the prosecutor, in his cross-examination he has categorically stated that he has told the police that he does not know anything about the incident. He has further stated that neither the prosecutrix nor her mother told him about the incident and further stated that he does not know anything about the case. 19 18. Further, neither the doctor nor the IO has been examined before the trial court to prove the prosecution case. The appellant was right in bringing to the notice of the trial court as well as the High Court that the non-examination of the aforesaid two important witnesses in the case has prejudiced the case of the appellant for the reason that if the doctor would have been examined he could have elicited evidence about any injury sustained by the prosecutrix on her private part or any other part of her body and also the nature of hymen layer, etc. so as to corroborate the story of the prosecution that the prosecutrix suffered unbearable pain while the appellant committed rape on her. The non-examination of the doctor who had examined her after 12 days of the occurrence has not prejudiced the case of the defence for the reason that the prosecutrix was examined after 12 days of the offence alleged to have been committed by the appellant because by that time the sign of rape must have disappeared. Even if it was presumed that the hymen of the victim was found ruptured and no injury was found on her private part or any other part of her body, finding of such rupture of hymen may be for several reasons in the present age when the prosecutrix was a working girl and that she was not leading an idle life inside the four walls of her home. The said reasoning assigned by the High Court is totally erroneous in law. 19. In view of the above statement of evidence of PW 3 and PW 4 whose evidence is important for the prosecution to prove the chain of events as per its case, the statement of evidence of the aforesaid witnesses has seriously affected the prosecution case. Therefore, the courts below could not have, by any stretch of imagination, on the basis of the evidence on record held that the appellant is guilty of committing the offence under Section 376 IPC. Further, according to the prosecutrix, PW 3 who is alleged to have rescued her from the place of occurrence of offence, has clearly stated in his evidence that he does not know anything about the incident in his statement thereby he does not support the version of the prosecution. The High Court has erroneously accepted the finding of the trial court that the appellant has not been prejudiced for non- examination of the doctor for the reason that she was working as a nurse in the private hospital of PW 4 and being a nurse she knew that the information on commission of rape is grave in nature and she would not have hesitated in giving the 20 information to the police if the occurrence was true. Further, the finding of the courts below that non-examination of the IO by the prosecution who has conducted the investigation in this case has not caused prejudice to the case of the appellant, since the prosecution witnesses were unfavourable to the prosecution who were either examined or declared hostile by the prosecution, which reasoning is wholly untenable in law. Therefore, the finding and reasons recorded by both the trial court as well as the High Court regarding non-examination of the abovesaid two witnesses in the case has not prejudiced the case of the appellant is totally an erroneous approach of the courts below. For this reason also, we have to hold that the findings and reasons recorded in the impugned judgment [ Criminal Appeal No. 58 of 1999, decided on 14-11-2006 (Jhar)] that the trial court was justified in holding that the prosecution has proved the charge against the appellant and that he has committed the offence on the prosecutrix, is totally erroneous and the same is wholly unsustainable in law. 20. The finding with regard to the sentence of the appellant recorded by the trial court which is accepted by the High Court on the basis of the solitary testimony of the prosecutrix which is supported by the evidence of her mother, PW 2 is once again an erroneous approach on the part of the High Court. The offence of rape alleged to have been committed by the appellant is established without any evidence as the prosecution failed to prove the chain of events as stated by the prosecutrix. Since the evidence of PW 3 and PW 4 did not support the prosecution case, but on the other hand, their evidence has seriously affected the story of the prosecution. Therefore, the courts below could not have found the appellant as guilty of the charge and convicted and sentenced him for the offence of rape. 21. Further, one more strong circumstance which has weighed in our mind is that they had good acquaintance with each other as they were classmates and they were in terms of meeting with each other. The defence counsel had alternatively argued that the appellant had sex with her consent. The High Court proceeded not to accept the said argument by giving reasons that the appellant failed to explain as to under what circumstance he had sex with the consent of the prosecutrix 21 when she was confined in his house. The contention urged on behalf the appellant that it was consensual sex with the prosecutrix is to be believed for the reason that she herself had gone to the house of the appellant though her version is that she went there at the request of the appellant to take back her book which she had given to him. This is a strong circumstance to arrive at the conclusion that the defence case of the appellant is of consensual sex. Further, the prosecution case is that after the offence was committed by the appellant he had locked the room from outside and left. After half an hour Purnendu Babu, PW 3 arrived and unlocked the room. This story is improbable to believe and the prosecutrix has not lodged the complaint either immediately or within reasonable period from the date of occurrence. The complaint was indisputably lodged after a lapse of 11 days by the prosecutrix. In this regard, it is pertinent to mention the judgment of this Court in Raju v. State of M.P. [(2008) 15 SCC 133 : (2009) 3 SCC (Cri) 751] , the relevant paragraph of which for better appreciation in support of our conclusion: (SCC p. 141, para 12) is extracted hereunder “12. Reference has been made in Gurmit Singh case [State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 : 1996 SCC (Cri) 316] to the amendments in 1983 to Sections 375 and 376 of the Penal Code making the penal provisions relating to rape more stringent, and also to Section 114-A of the Evidence Act with respect to a presumption to be raised with regard to allegations of consensual sex in a case of alleged rape. It is however significant that Sections 113-A and 113-B too were inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualised as the presumption under Section 114-A is extremely restricted in insofar as its applicability. This clearly shows allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally, her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. We believe that it is under these principles that this case, and others such as this one, need to be examined.” that 22 22. For the aforesaid reasons the prosecution case is not natural, consistent and probable to believe to sustain the conviction and sentence of the appellant for the alleged offence said to have been committed by him. 23. The trial court as well as the High Court should have appreciated the evidence on record with regard to delay and not giving proper explanation regarding delay of 11 days in filing FIR by the prosecutrix and non- examination of the complainant witnesses viz. the doctor and the IO which has not only caused prejudice to the case of the appellant but also the case of prosecution has created reasonable doubt in the mind of this Court. Therefore, the benefit of doubt must enure to the appellant. As we have stated above, the testimony of the prosecutrix is most unnatural and improbable to believe and therefore for acceptance of the same for sustaining the conviction and sentence. Therefore, we are of the view that the impugned judgment [ Criminal Appeal No. 58 of 1999, decided on 14-11- 2006 (Jhar)] requires to be interfered with by this Court in exercise of its jurisdiction. Accordingly, we allow the appeal and set aside the impugned judgment [ Criminal Appeal No. 58 of 1999, decided on 14-11-2006 (Jhar)] . If the appellant has executed bail bonds, the same may be discharged.” inspire confidence it does not In the case of MOHD. ALI v. STATE OF UTTAR PRADESH4, the (Emphasis supplied) Apex Court holds as follows: “…. …. …. 26. The obtaining factual matrix has to be appreciated on the touchstone of the aforesaid parameters. 27. Be it clearly stated here that delay in lodging FIR in cases under Section 376 IPC would depend upon facts of each case and this Court has given immense 4 (2015) 7 SCC 272 23 allowance to such delay, regard being had to the trauma suffered by the prosecutrix and various other factors, but a significant one, in the present case, it has to be appreciated from a different perspective. The prosecutrix was missing from home. In such a situation, it was a normal expectation that either the mother or the brother would have lodged a missing report at the police station. The same was not done. This action of PW 2 really throws a great challenge to common sense. No explanation has been offered for such delay. The learned trial Judge has adverted to this facet on an unacceptable backdrop by referring to the principle that prosecutrix suffered from trauma and the constraint of the social stigma. The prosecutrix at that time was nowhere on the scene. It is the mother who was required to inform the police about missing of her grown-up daughter. In the absence of any explanation, it gives rise to a sense of doubt. 28. That apart, the factum that the appellant informed the mother of the victim that he had left the prosecutrix at the door of her house also does not command acceptance. The recovery of the prosecutrix by the brother and his friends also creates a cloud of suspicion. We are not inclined to believe the prosecution version as has been projected that one Arif had informed the brother of the prosecutrix that his sister was at his place but for reasons best known to the prosecution, Arif has not been examined. That apart, the persons who were accompanying the brother have also not been examined by the prosecution. Thus, the manner of recovery of the prosecutrix from the house of Arif remains a mystery. 29. Be it noted, there can be no iota of doubt that on the basis of the sole testimony of the prosecutrix, if it is unimpeachable and beyond reproach, a conviction can be based. In the case at hand, the learned trial Judge as well as the High Court have persuaded themselves away with this principle without appreciating the acceptability and reliability of the testimony of the witness. In fact, it would not be inappropriate to say that whatever the analysis in the impugned judgment [ Criminal Appeal No. 602 of 2006, decided on 25-3-2009 (All)] , it would only indicate an impropriety of approach. The prosecutrix has deposed that she was taken from one place to 24 the other and remained at various houses for almost two months. The only explanation given by her is that she was threatened by the accused persons. It is not in her testimony that she was confined to one place. In fact, it has been borne out from the material on record that she had travelled from place to place and she was ravished a number of times. Under these circumstances, the medical evidence gains significance, for the examining doctor has categorically deposed that there are no injuries on the private parts. The delay in FIR, the non-examination of the witnesses, the testimony of the prosecutrix, the associated circumstances and the medical evidence, leave a mark of doubt to treat the testimony of the prosecutrix as so natural and truthful to inspire confidence. It can be stated with certitude that the evidence of the prosecutrix is not of such quality which can be placed reliance upon.” (Emphasis supplied) On a blend of law as enunciated by the Apex Court in the afore- extracted judgments and if such enunciation is pitted to the facts obtaining in the case at hand, what would unequivocally emerge is that delay in lodging the FIR would vitiate the proceedings, unless delay is satisfactorily explained. The delay that the Apex Court considers in the aforementioned cases were all considering the offence of rape and the delay in those cases ranged from 8 days to 7 months. The delay in the case at hand is 9 years, if considered an event of 2006 and 6 years, if considered an event after the marriage of the prosecutrix. The perusal at the 25 complaint or the summary of the charge sheet quote supra, would clearly indicate that the delay is not explained satisfactorily even to its semblance. Therefore, the delay in registering the crime has vitiated the registration and the proceedings in the aftermath. Thus, the point that arose for consideration is answered in favour of the petitioner and this would be enough circumstance to hold that the entire proceedings are vitiated. Issue No.2: Whether the learned Magistrate taking cognizance of the offence on the basis of a final report filed by the policeman who was in fact not an officer in-charge of the police station, has vitiated the entire proceedings? 14. It is germane to notice certain provisions of the Criminal Procedure Code to consider this point. Notification is defined under Section 2(m); Section 2(o) defines officer in charge of a police station; Police report is defined under Section 2(r); Police Station is defined under Section 2(s). These provisions read as follows: 26 “2. Definitions.- In this Code, unless the context otherwise requires, - ….….…. (m) “notification” means a notification published in the official gazetted. ….….…. (o) “officer in charge of a police station” includes, when the officer in charge of the police station is absent from the station- house or unable from illness or other cause to perform his duties, the police officer present at the station-house who is next in rank to such officer and is above the rank of the State Government so directs, any other police officer so present; constable or, when ….….…. (r) (s) “police report” means a report forwarded by a police officer to a Magistrate under sub-section (2) of Section 173; “Police station” means any post or place declared generally or specialty by the State Government to be a police station, and includes any the State Government in this behalf.” local area specified by (Emphasis supplied) Section 36 of the Cr.P.C. which deals with powers of superior officers of police reads as follows: “36. Powers of superior officers of police.- Police officers superior in rank to officer in charge of a police station may exercise the same powers, throughout the local area to 27 which they are appointed, as may be exercised by such officer within the limits of his station.” The afore-quoted provisions are germane for consideration of this point. Investigation was handed over to an officer of CID. The officer of CID after collection of evidence frames a report and files the same before the Magistrate. The final report is the charge sheet. The issue whether the officer of CID is an officer in-charge of the police station or not is required to be considered. 15. The basic requirement of declaration of an officer of CID to be an officer in-charge of the police station, is, the office of CID should be declared to be a police station. Admittedly, there is no notification issued under Section 2(m) (supra) declaring office of CID to be a police station. Therefore, the officer in-charge in the office of the CID cannot be an officer in-charge of a police station, without at the outset the office of the CID being declared as a police station. 16. It is now necessary to consider the purport of Section 36. Section 36 of the Cr.P.C. depicts powers of superior officers of police. The Police Officers who are superior in rank of the officer-in- 28 charge of a police station may exercise the same power throughout the local area to which they are appointed as may be exercised by such officer within the limits of the station. What unmistakably emerges is that the police officer superior in rank to an officer in- charge of the police station will have to be a superior officer in- charge of a police station. The officer of the CID cannot mean to be a superior officer in-charge of a police station as the office of CID is not a police station. 17. The learned counsel for the 2nd respondent/ complainant would contend that a notification is issued by Government empowering CID to conduct investigation in terms of a general order/standing order which empowers CID to investigate and file a report. Therefore, it becomes germane to notice the said notification issued by Government of Mysore under the Mysore Police Act on 18.02.1970. The said notification reads as follows: “HOME SECRETARIAT NOTIFICATION Bangalore, dated 18th February 1979. 29 S.O.424, - In exercise of the powers conferred by Sections 4, 5 and 6 of the Mysore Police Act, 1963 (Mysore Act 4 of 1964), the Government of Mysore hereby directs that whenever a Sub-Inspector of Police of the State Criminal Investigation Department, investigates at any place in the State an offence, he shall be deemed to be an officer in charge of the Police Station within the limits of which such place is situate. [No.HD 83 PEG 69]” (Emphasis added) A perusal at the Notification would indicate that investigation department is empowered to investigate at any place in the State an offence and for such investigation he shall be deemed to be an officer in-charge of the police station within the limits of which such place is situated. 18. On the strength of the said notification the contention advanced by the learned counsel for the complainant or the State is unacceptable for the reason that the investigation department which is now the CID, is directed to investigate under the Notification and not file a charge sheet. Filing of a charge sheet is only by an officer in-charge of a police station. Section 173 (2) of the Cr.P.C. deals with report of a police officer on completion of investigation and reads as follows: 30 “173. Report of police officer on completion of investigation.-(1) Every investigation under this Chapter shall be completed without unnecessary delay. (1A) The investigation in relation to an offence under sections 376, 376A, 376 AB, 376B, 376C, 376D, 376DA, 376DB or 376E of the Penal Code, 1860 shall be completed within two months from the date on which the information was recorded by the officer in charge of the police station. (2)(i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating- (a) (b) (c) the names of the parties; the nature of the information; the names of the persons who appear the to circumstances of the case; acquainted with be (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, weather with or without sureties; (g) whether he has been forwarded in custody under section 170; (h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under sections 376, 376A, 376AB, 376C, 376D, 376DA, 376DB or section 376E of the Penal Code, 1860 (ii) The officer shall also communicate, in such manner as may be prescribed by the 31 State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given. (3) Where a superior officer of police has been appointed under section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation. (4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order-for the discharge of such bond or otherwise as he thinks fit. (5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate alongwith the report- (a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation; (b) the statements-recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses. (6) If the police officer is of opinion that any part of any such statement is not relevant to the subject-matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request. (7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub-section (5). 32 (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).” (Emphasis supplied) Section 173 of the Cr.P.C. mandates that a final report/charge sheet shall be filed by an officer in-charge of a police station. It is now germane to notice the law, as laid down by the Apex Court, on the subject issue. The Apex Court in the case of STATE OF BIHAR v. LALU SINGH5 has held as under: “11. The State Government, in exercise of the powers under Sections 7 and 12 of the Police Act, 1861, has framed the Bihar Police Manual Chapter 15 thereof deals with the Constitution and the Criminal Investigation Department Rule 431, with which we are concerned in the present appeal, reads as follows: functions of “431. (a) Sub-Inspectors of the department deputed to districts have not the powers of an officer in charge of a police station nor of the subordinate of such an officer, unless they are posted to a police station for the purpose of exercising such powers. It follows that unless so posted they have not the powers of investigation conferred by Chapter XII CrPC and their functions are confined to supervising or advising the local officers concerned. If for any reason it be deemed advisable that a Sub-Inspector of the department should conduct an investigation in person, 5 (2014) 1 SCC 663 33 the orders of the Inspector General shall be taken to post him to a district where he shall be appointed by the Superintendent to the police station concerned. Such a necessity will not arise in case of Inspectors of CID as given in sub-rule (b) below. Sub-Inspectors of the department shall not be employed to conduct investigations in person unless such orders have been obtained. (b) Under Section 36 CrPC Inspectors and superior officers of CID are superior in rank to an officer in charge of a police station and as such may exercise the some powers throughout the State as may be exercised by an officer in charge of a police station within the limits of his station.” Rule 431(b) makes the Inspectors and supetior officers of CID superior in rank to an officer in charge of a police station and they have been conferred with the same powers as may be exercised by an officer in charge of a police station. This Rule, therefore, envisages that an Inspector of CID can exercise the power of an officer in charge of a police station. 12. Here, in the present case, as stated earlier, the investigation was conducted by the Inspector of CID and it is he who had submitted the report in terms of Section 173 of the Code. In view of what we have observed above, the Inspector of CID can exercise the power of an officer in charge of a police station and once it is held so, its natural corollary is that the Inspector of CID is competent to submit the report as contemplated under Section 173 of the Code. The case in hand is not one of those cases where the officer in charge of the police station had deputed the Inspector of CID to conduct some steps necessary during the course of investigation. Rather, in the present case, the investigation itself was entrusted to the Inspector of CID by the order of the Director General of Police. In such circumstances, in our opinion, it shall not be necessary for the officer in charge of the police station to submit the report under Section 173(2) of the Code. The formation of an opinion as to whether or not there is a case to forward the accused for trial shall always be with the officer in charge of the police station or the officers superior in rank to him, but in a case investigated by the Inspector of CID, all these powers have to be 34 performed by the Inspector himself or the officer superior to him. In view of what we have discussed above, the observations made by the High Court in the impugned judgment [Lulu Singh v. State of Bihar, Cri WJC No. 996 of 2007, order dated 23-3-2009 (Pat)] are erroneous and deserve to be set aside. (Emphasis supplied) The Apex Court, in the afore-extracted judgment, held that it was permissible for a superior officer to conduct investigation and file a final report since the Rules i.e., Rule 43(1)(b) empowered such an act. The corollary of the said finding would be that if the Rules permit such an investigation and filing of a final report would become sustainable. 19. Later, the Apex Court in the case of TOFAN SINGH v. STATE OF TAMIL NADU6 while considering Section 173 has held as follows: “77. The Court in Mukesh Singh [Mukesh Singh v. State (NCT of Delhi), (2020) 10 SCC 120] then set out the provisions of the NDPS Act and concluded : (SCC p. 160 para 10) “10.3.6. Section 52 of the NDPS Act mandates that any officer, arresting a person under Sections 41, 42, 43 or 44 to inform the person arrested of the grounds for such arrest. Sub-Section (2) of Section 52 further provides that every person arrested and article seized under warrant issued under sub-section (1) of Section 41 shall be 6 (2021) 4 SCC 1 35 forwarded without unnecessary delay to the Magistrate by whom the warrant was issued. As per sub-section (3) of Section 52, every person arrested and article seized under sub-section (2) of Sections 41, 42, 43, or 44 shall be forwarded without unnecessary delay to the officer in charge of the nearest police station, or the officer empowered under Section 53. That the investigation is to be conducted by the officer in charge of a police station.” thereafter (emphasis supplied) 78. The Court in Mukesh Singh [Mukesh Singh v. State (NCT of Delhi), (2020) 10 SCC 120] then went on to state : (SCC p. 161, para 10) “10.3.8. … Section 53 does not speak that all those officers to be authorised to exercise the powers of an officer in charge of a police station for the investigation of the offences under the NDPS Act shall be other than those officers authorised under Sections 41, 42, 43, and 44 of the NDPS Act. It appears that the legislature in its wisdom has never thought that the officers authorised to exercise the powers under Sections 41, 42, 43 and 44 can not be the officer in charge of a police station for the investigation of the offences under the NDPS Act. 10.4. Investigation includes even search and seizure. As the investigation is to be carried out by the officer in charge of a police station and none other and therefore purposely Section 53 authorises the Central Government or the State Government, as the case may be, invest any officer of the Department of Drugs Control, Revenue or Excise or any other department or any class of such officers with the powers of an officer in charge of a police station for the investigation of offences under the NDPS Act. Section 42 confers power of entry, search, seizure and arrest without warrant or authorisation to any such officer as mentioned in Section 42 including any such officer of the Revenue, Drugs Control, Excise, Police or any other department of a State Government or the Central Government, as the case may be, and as observed hereinabove, Section 53 authorises the Central Government to invest any officer of the Department of Central Excise, Narcotics, Customs, Revenue Intelligence or any other Department of the Central Government….or any class of such officers with the powers of an officer in charge of a 36 police station for the investigation. Similar powers are with the State Government. The only change in Sections 42 and 53 is that in Section 42 the word “police” is there, however in Section 53 the word “police” is not there. There is an obvious reason as for police such requirement is not warranted as he always can be the officer in charge of a police station as per the definition of an “officer in charge of a police station” as defined under Cr.P. C.” 79. On the basis of this judgment, Shri Lekhi argued that “investigation.” under the NDPS Act includes search and seizure which is to be done by a Section 42 officer and would, therefore, begin from that stage. 80. In this connection, it is important to advert first to the decision of this Court in H.N. Rishbud v. State of Delhi [H.N. Rishbud v. State of Delhi, (1955) 1 SCR 1150 : AIR 1955 SC 196 : 1955 Cri LJ 526]. This judgment explains in great detail as to what exactly the scope of “investigation” is under the CrPC. It states : (SCR pp. 1156-58 : AIR pp. 200-202, para 5) “5. … In order to ascertain the scope of and the reason for requiring such investigation to be conducted by an officer of high rank (except when othervise permitted by a Magistrate), it is useful to consider what “investigation” under the Code comprises. Investigation usually starts on information relating to the commission of an offence given to an officer in charge of a police station and recorded under Section 154 of the Code. If from information so received or otherwise, the officer in charge of the police station has reason to suspect the commission of an offence, he or some other subordinate officer deputed by him, has to proceed to the spot to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender. Thus consists investigation primarily the ascertainment of the facts and circumstances of the case. By definition, it includes ‘all the proceedings under the Code for the collection of evidence conducted by a police officer’. For the above purposes, the investigating officer is given the power to require before himself the attendance of any person appearing to be acquainted with the circumstances of the case. He has also the authority to examine such in 37 person orally either by himself or by a duly authorised deputy. The officer examining any person in the course of investigation may reduce his statement into writing and such writing is available, in the trial that may follow, for use in the manner provided in this behalf in Section 162. Under Section 155 the officer in charge of a police station has the power of making a search in any place for the seizure of anything believed to be necessary for the purpose of the investigation. The search has to be conducted by such officer in person. A subordinate officer may be deputed by him for the purpose only for reasons to be recorded in writing if he is unable to conduct the search in person and there is no other competent officer available. The investigating officer has also the power to arrest the person or persons suspected of the commission of the offence under Section 54 of the Code. A police officer making an investigation is enjoined to enter his proceedings in a diary from day-to-day. Where such investigation cannot be completed within the period of 24 hours and the accused is in custody he is enjoined also to send a copy of the entries in the diary to the Magistrate concerned. is It important to notice that where the investigation is conducted not by the officer in charge of the police station but by a subordinate officer (by virtue of one or other of the provisions enabling him to depute such subordinate officer for any of the steps in the investigation) such subordinate officer is to report the result of the investigation to the officer in charge of the police station. If upon the completion of the investigation it appears to the officer in charge of the police station that there is no sufficient evidence or reasonable ground, he may decide to release the suspected accused, if in custody, on his executing a bond. If, however, it appears to him that there is sufficient evidence or reasonable ground, to place the accused on trial, he is to take the necessary steps therefor under Section 170 of the Code. In either case, on the completion of the investigation he has to submit a report to the Magistrate under Section 173 of the Code in the prescribed form furnishing various details. 38 Thus, under the Code investigation consists generally of the following steps : (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and (5) Formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge-sheet under Section 173. in the The scheme of the Code also shows that while it is permissible for an officer in charge of a police station to depute some subordinate officer to conduct some of these steps investigation, the responsibility for every one of these steps is that of the person in the situation of the officer in charge of the police station, it having been clearly provided in Section 168 that when a subordinate officer makes an investigation he should report the result to the officer in charge of the police station. It is also clear that the final step in the investigation viz. the formation of the opinion as to whether or not there is a case to place the accused on trial is to be that of the officer in charge of the police station. There is no provision permitting delegation thereof but only a provision entitling superior officers to supervise or participate under Section 551.” This statement of the law was reiterated in State of M.P. v. Mubarak Ali [State of M.P. v. Mubarak Ali, 1959 Supp (2) SCR 201; AIR 1959 SC 707; 1959 Cri LJ 920], SCR at pp. 211 &212 : AIR p. 711.” (Emphasis supplied) In the aforesaid judgment the Apex Court considered a subordinate officer conducting investigation, but held that the filing 39 of the final report should be only from the hands of an officer in- charge of the police station. It is now the State Government on 12-01-2024 has declared the CID to be a police station. I deem it appropriate to notice the Notification. It reads as follows: “GOVERNMENT OF KARNATAKA No.HD/94/POP/2023 Karnataka Government Secretariat Vidhana Soudha, Bangalore, dated 12-01-2024. NOTIFICATION In exercise of the powers conferred by clause (s) of Section 2 of the Code of Criminal Procedure, 1973 (Central Act- 2 of 1974), and in supersession of earlier order or notification issued in this regard, the Criminal Investigation Department (CID) an unit of Karnataka Police Department is declared and notified as police station for the entire territory of the State of Karnataka. The Police Inspector rank officer of the Criminal Investigation Department (CID) will be the Station House Officer and Officer in-charge of Police Station for the purpose of provisions of the Code of Criminal Procedure 1973 (Central Act-2 of 1974) relating to the criminal cases referred by the Government of Karnataka, the Supreme Court or the High Court or the Director General and Inspector general of Police, Karnataka State for the purpose of investigation and to register criminal cases in cognizable offences made out of enquiries to the Criminal Investigation Department (CID) by the Government of Karnataka, the Supreme Court of India or the High Court or the Director General and Inspector General of Police, Karnataka State. By order and in the name of the Governor of Karnataka, Sd/- (K.N.VANAJA), 12/1/24 40 Under Secretary to Government, Home Department (Police Expenditure).” 20. Therefore, the unmistakable conclusion on a coalesce of the aforesaid direction, the notification, the investigation conducted by the officer of the CID and the law laid down by the Apex Court interpreting Section 173 of the Cr.P.C. would be that the chargesheet that is filed by the officer of the CID who is not the officer in-charge of a police station would stand vitiated. Accordingly, this point as well, is answered against the prosecution. Issue No.3: Whether cognizance taken by the learned Magistrate on the final report and issuance of process suffers from non- application of mind and would be contrary to Section 204 of the Cr.P.C.? 21. Section 204 of Cr.P.C. mandates that before ordering process against the accused, the Magistrate shall find out existence of sufficient grounds. Section 204 of the Cr.P.C. reads as follows: “204. Issue of process.- 41 If (1) the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be- in (a) a summons-case, he shall issue his summons for the attendance of the accused, or (b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction. (2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed. (3) In a proceeding instituted upon a complaint made in writing every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint. (4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint. (5) Nothing in this section shall be deemed to affect the provisions of section 87.” (Emphasis supplied) The mandate of the afore-extracted provision of law is that the learned Magistrate taking cognizance of an offence can do it only if there exists sufficient ground to proceed. Section 190 of Cr.P.C. 42 which deals with conditions requisite for initiation of proceedings and cognizance of offence by the learned Magistrate would also mean that the learned Magistrate should take cognizance upon a police report on such facts that are narrated in the report. It is the aforesaid provisions that are required to be considered to answer these points. The order taking cognizance becomes germane to be noticed and it reads thus: “For order: Perused the records; Cognizance is taken in respect of the offence punishable U/s 323, 376, 376((2(F)(I)(N), 498(A), 109 of IPC. Hence register the case against the accused in Register No.III in respect of the above said offence. Issue SS to A1 and 2, Call on 20-10- 2018.” (Emphasis added) The manner in which cognizance is taken against the petitioner is as afore-extracted. If order taking cognizance is considered on the touchstone of either Section 204 or Section 190 of Cr.P.C. (supra), it would without a shadow of doubt fall foul of the said provisions of law, as there is absolutely no application of mind by 43 the learned Magistrate in taking cognizance as to which offence he is taking cognizance of. 22. Reference to the judgments of the Apex Court in the case of GHCL EMPLOYEES STOCK OPTION TRUST; SUNIL BHARTI MITTAL and the latest judgments on the point in the cases of RAVINDRANATHA BAJPE and SUNIL TODI, in the circumstances, is apposite. The Apex Court in the case of GHCL EMPLOYEES STOCK OPTION TRUST v. INDIA INFOLINE LIMITED7 holds as follows:
Decision
O R D E R (i) Writ Petition is allowed. 65 (ii) Proceedings in C.C.No.26533 of 2018 pending before I Additional Chief Metropolitan Magistrate, Bengaluru concerning charge sheet No.06 of 2018 and all further proceedings thereto stand quashed qua the petitioner. (iii) The observations made in the course of the order are restricted to the consideration of the case of the petitioner alone and cannot be paraphrased to any other accused. The trial, if any pending against any other accused, shall be considered by the competent Court without being influenced by the observations or the findings in the case at hand. Sd/- (M.NAGAPRASANNA) JUDGE BKP CT:MJ